Academic journal article Law and Contemporary Problems

Federal Mens Rea Interpretation and the Limits of Culpability's Relevance

Academic journal article Law and Contemporary Problems

Federal Mens Rea Interpretation and the Limits of Culpability's Relevance

Article excerpt



The standard description of Anglo-American criminal law is that liability requires voluntary conduct and a culpable mental state--the union of act and intent. (1) Proof of both ensures that criminal punishment rests upon fault as well as wrongdoing, where wrongdoing refers to conduct that violates a prohibition, and fault is a determination based on intention or conscious awareness of the wrongful conduct, its consequences, and the significant circumstances in which it occurs. (2) Together wrongdoing and fault make an offender blameworthy (or culpable), which justifies imposing criminal sanctions. An important corollary is that criminal punishment is set in some proportion to wrongdoing and fault; culpability limits punishment.

Mens rea requirements are the traditional means to determine culpability. That is, we determine fault by proof of an actor's mental state--intention, knowledge, recklessness, or perhaps negligence--with regard to various elements of the offense. Thus, the difference in causing a death intentionally and causing a death non-negligently (holding aside defenses) is the difference between liability for murder and no liability. Similarly, after one's hand makes contact with another's nose, liability for assault may depend on whether one was aware that another was within range of voluntary arm movements. And liability for theft depends in part on one's awareness that the property belonged to another.

The story is more complicated, of course. There is a longstanding rationale for a broad range of "public welfare" offenses that require no fault--no proof of mens rea. Liability is justified largely on instrumental grounds--prevention of harm--and on proof (generally, in some sense) of a causal relationship between the actor and the risk that the offense targets. (3) As a category, those offenses generally have low (misdemeanor-level) punishments, and they are not my focus here. (4) The more challenging and significant complications regarding the fault requirements arise in serious offenses carrying significant prison terms. As a practical matter, these difficulties concern which elements of felony offenses carry mens rea requirements. For this question, the principle that "criminal liability requires proof of a culpable mental state" is insufficient. Strict liability as to some elements of offenses is widespread and often noncontroversial. Yet courts lack reliable interpretive tools for distinguishing which statutory elements will carry strict liability, surely in part because legislatures do not seem to follow consistent principles when designating strict liability elements and employ drafting conventions that make their intentions on such choices unclear. (5)

Courts' interpretive choices regarding mens rea present a choice of two accounts of culpability, which are also bases for sentencing. These choices address ideas of what degree of culpability is required to justify criminal punishment, which is the same choice underlying legislatures' design of offense definitions. One account is proportionate culpability. This principle states that punishment must be in accord with or in proportion to culpability, and it is sometimes endorsed by courts (6) and overwhelmingly by scholars. (7) Mens rea must attach to every normatively significant element of the offense as a means to measure culpability; one who intends a bad result demonstrates more fault than one who intends conduct but not the result it causes. The Model Penal Code (MPC), the American Law Institute's mid-century recommendation of how American criminal law should be designed, strongly endorsed proportionate culpability. (8) This idea, however, characterizes neither American criminal law nor courts' interpretation of mens rea requirements.

The contrasting principle one might call threshold culpability and seems to be the dominant view of American courts and legislatures. On this view, proof of mens rea is needed only to determine whether one is innocent or blameworthy for some offense. …

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